Is the law facilitative or regulatory? asks a representative. Regulatory, replies another, with conservation and sustainable use as its focus. Two others across the table seem to think that they have been given clear instructions to implement the law in a facilitative manner, so as to incentivise industry to participate in the process. I sit there wondering what really happened. This difference of opinion was emerging from representatives of the institutional framework that was set up under the Biological Diversity (BD) Act, 2002.
The discussion centred around the Access and Benefit Sharing (ABS) regime that many countries have or are in the process of formulating. In simple terms, this means that country governments, including India, who are signatories to the Convention on Biological Diversity (1992) are to have legal regimes for conservation, sustainable use of biodiversity and related people’s knowledge along with ensuring equitable sharing of benefits arising out of that access.
In response, India enacted the BD Act in 2002 and corresponding rules in 2004. With this law in place, no international entity could access biological material and related people’s knowledge for research, biosurvey, and commercial utilisation unless they took permission from the Chennai-based National Biodiversity Authority (NBA).
If an Indian entity wants access then the intimation needs to go to Biodiversity Boards (SBBs) to be set up in all states. If, subsequently, an Intellectual Property Right (IPR) in the form of a patent or trademark is applied for, the NBA’s prior approval is needed, for both Indians and foreigners. In all cases of access, a village or urban ward level Biodiversity Management Committee (BMC) needs to be consulted.
The biodiversity law in India has several other aspects, but as its designers and their implementation priorities would have it, it is ABS that has been the prime focus. The global push through international agreements like the Nagoya Protocol of 2010 have put additional pressure on signatory countries to have a functioning ABS regime. While the aim is to check theft of bio resources and associated knowledge, the real push comes from the life sciences or bio-based trade industries, who would like a clear process by which physical material and knowledge can be accessed and used.
The three tangles
As we have written in our paper, “Can Benefits be Shared: Three Tangles for Benefit Sharing”, there are at least three clear tangles for the ABS regime, including in India.
First is the challenge of binding the dynamism and spread of biodiversity and related knowledge into a legal framework. Taking permission for access and sharing benefits requires establishing a clear owner. With knowledge and species cutting across national and international borders, whom do you call the owner with whom you can get into an agreement? Are others with the same knowledge or use not to be asked and don’t deserve the benefits?
Second, are there limits to what is a bioresource? A BMC approached the National Green Tribunal (NGT), indicating that coal is a bio resource and that large coal mining companies should pay the communities a fee for this access. The claim was eventually not accepted by the tribunal. There are also cases pending before various benches in which the bio-based trade companies argue that the ABS regime should not be applicable to them and SBBs are pushing the limits of the legal system to regulate.
Third is the ongoing concern of enforcement. The legal framework regulating all of the above relies heavily on disclosure by the accessing party at the time of seeking permission, if at all permission is sought. Once an agreement is signed, the enforcement infrastructure is weak. This is also because there is no formal mechanism of making the communities or their representative BMCs allies in the enforcement process, albeit with checks and balances.
People or experts
There is a larger point to be made about the popularity of this law. Discussions on what the law should look like and what should be its focus have been the domain of experts, be it scientists, lawyers, officials or NGOs. The only time it goes to the people living in and around biodiversity is when there are awareness programmes on the importance of biodiversity or when biodiversity is being showcased in festivals and exhibitions.
So when we sit with a group of people who have been living by using and often conserving biological diversity for generations, they ask, What does this law offer us? Do we have the power to decide or the power to enforce against illegality? Or are you saying that the benefits we will get from this process (either monetary or non-monetary) will far outweigh all other associations we have with the place we live in: be it through local trade or through unhindered access for livelihoods? The biodiversity law and the ABS regime currently offer little, even though there is scope for more.
Notwithstanding the inherent inter-community conflict and without romanticising the local community’s commitment to conserve or use biodiversity with care, it is time the biodiversity discourse leaves the experts and the meeting rooms.
The discussion in ABS today has become much too focused on licensing and contracting, so as to ensure some monetary benefits reach a few communities living around or dependent on natural resources. The implementers can approach the issue from a facilitative or regulatory lens, at any given point of time. But three questions stare at all of us: first, is this really what the law requires and international protocols demand? Second, is the access ethical and benefits equitable? Finally, where does democratic decision-making hang in this ABS balance?
The author is a researcher and writer; email: firstname.lastname@example.org